Open AccessFUNCTUS OFFICIO — LIMITS OF JUDICIAL DISCRETION IN COMMON LAW SYSTEM ON REVIEWING JUDICIAL ACTS AFTER THEIR PASSING AND SERVING
Author(s) -
Сергей Гландин,
Sergey Glandin
Publication year - 2015
Publication title -
žurnal zarubežnogo zakonodatelʹstva i sravnitelʹnogo pravovedeniâ
Language(s) - English
Resource type - Journals
eISSN - 2587-9995
pISSN - 1991-3222
DOI - 10.12737/14271
Subject(s) - discretion , judicial discretion , law , statute , political science , judicial independence , independence (probability theory) , lawsuit , common law , scope (computer science) , doctrine , judicial review , supreme court , computer science , statistics , mathematics , programming language
As opposed to Russia, wide scope of judicial discretion is characteristic to the common law states. Recently Great Britain has started to apply in practice forwarding of draft judicial acts to the parties to the lawsuit prior to their final issuance, as a result of which the parties have an opportunity to influence the judge, which may conflict with the principles of legal certainty and independence of judges. As opposed to Russia, where judicial discretion and judges’ rights to review final judgments are statute-restricted, in England the judges’ powers are not enacted into law and are being constantly concretized by case law. For the purpose of helping domestic lawyers to prepare for such surprises, this article investigates, on the basis of a number of recent cases, the modern doctrine of functus officio, types of judiciary acts, which are reviewed after their final passing and serving to the parties, as well as the scope of judicial discretion after issuing judiciary acts, and provides answers on case law in relation to the functus officio institute.